McEntee v. Cook

Belcher, C. C. •The demurrer to the complaint should have been sustained. The action was commenced to determine a contest between the parties as to their rights to purchase from the state certain parts of sections 20 and 29, in township 18 north, range 17 west, Mount Diablo meridian. The plaintiff’s application to purchase the land was made in May, 1884, and the defendants’ applications were made in May, 1877.

Section 3495 of the Political Code, as it was framed in 1884, provided for the form of affidavit to be made by a person desiring to purchase any portion of a sixteenth or a thirty-sixth section of any township which had been surveyed by the United States, and section 3500 provided for the form to be used by any one desiring to purchase any part of the unsold portion of the five hundred thousand acres granted to the state for school purposes, or of the lands selected in lieu of the sixteenth and thirty-sixth sections.

The complaint shows that plaintiff’s affidavit was made under and in strict conformity to the require-[189]merits of section 3495, and not under and in conformity to the requirements of section 3500.

But the land applied for by plaintiff was not any portion of a sixteenth or thirty-sixth section, and his affidavit was, therefore, not the one required in such a case.

It is well settled that where one seeks to purchase land from the state he must state in his affidavit all the facts which the law makes requisite for such a purchase, and failing to do that, his application must fail. (Woods v. Sawtelle, 46 Cal. 389; Millidge v. Hyde, 67 Cal. 5; McKenzie v. Brandon, 71 Cal. 209.)

The statement in the complaint, “ that on the twenty-sixth day of May, 1884, plaintiff filed in the office of the surveyor-general of the state of California his affidavit and application in due form,” is the statement of a mere conclusion. The law requires the facts to be stated so that the court may see whether the application was made in due form, or not.

The record is sufficient. No bill of exceptions or statement was necessary. The transcript contains the demurrer, the order of the court overruling the same, and the judgment, in which is recited the demurrer, the ruling thereon, and the exception taken to that ruling by counsel for defendants.

The judgment should be reversed and the cause remanded, with directions to the court below to sustain the demurrer, giving leave to the plaintiff to amend his complaint if he is so advised.